St. Paul Fire & Marine Ins. Co. v. Brother Int'l Corp., No. 07-3886, 2009 WL 865077 (3d Cir. (N.J.) April 2, 2009)
Affirming the trial court, at issue was a class action lawsuit for TCPA violations under an “advertising injury” coverage provision. The district court concluded that neither the “advertising injury” nor “property damage” provisions were implicated. While an invasion of privacy did include a right of seclusion, the advertising injury provision in the policy is limited to violations of the privacy right of secrecy, not implicated by a TCPA claim.
It also specifically found that “the consumption of a fax recipient’s toner and paper is the intended consequence of the insured’s intentional act when sending a fax, and is therefore not ‘accidental’ within the meaning of the Policy.” Id. at *2.
The latter determination appears inconsistent with the published court of appeals
ruling in Insurance Corp. of Hanover v. Shelborne Associates, ___ N.E.2d ___, 2009 WL 884898 (Ill. App. Ct. (1st Dist.) March 31, 2009), entered three days before the April 2, 2009 Brother Int’l Order.
The court conceded that under New Jersey law subjective intent is applicable to determine an intent to injure.
The court found Melrose Hotel Co. v. St. Paul Fire & Marine Ins. Co., 432 F. Supp. 2d 488, 501 (E.D. Pa. 2006), aff’d, 503 F.3d 339 (3d Cir. 2007) dispositive as it addressed the same policy.
Melrose's knowledge about the TCPA and its lack of intent to violate the TCPA are irrelevant to whether it intended to cause harm that befell Class members.
Id. at *5.
